2019 Mass. App. Div. 139

June 28, 2019 - November 12, 2019

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: McGill, Poehler & D'Angelo, JJ. [Note 1]

Eden D. Prendergast and Kathleen M. Callan for the petitioner.

Tamara A. Barney for the respondent.

Ellyn H. Lazar for the Commonwealth.

D'ANGELO, J. This appeal arises from an order of the Worcester District Court allowing the District Attorney's objection to Worcester Recovery Center and Hospital's ("WRCH" or "Hospital") notice of its intent to remove the buildings and grounds restriction ("B&G restriction" or "restriction") on appellant ("K.K.") pursuant to G.L. c. 123, §16(e) and from evidentiary rulings at the hearing. Additionally, K.K. appeals the denial of his motion for a commitment hearing after he previously waived the hearing pursuant to G.L. c. 123, § 6(b).

On April 19, 2017, WRCH filed a petition for civil commitment pursuant to G.L. c. 123, § 16(c), alleging that K.K. was mentally ill and failure to hospitalize him would create a likelihood of serious harm by reason of his mental illness. Two years earlier, on October 9, 2015, K.K. had been found incompetent to stand trial on criminal charges by the Worcester Superior Court and was committed to WRCH for a period of six months. On April 8, 2016, WRCH petitioned pursuant to G.L. c. 123, § 16(c) to recommit K.K. for a period not to exceed one year. On April 13, 2016, K.K. executed a waiver of the hearing pursuant to G.L. c. 123, § 6(b). On April 19, 2017, the Hospital again filed a petition for a one-year commitment of K.K., and on April 20, 2017, the District Attorney for the Middle District ("District Attorney" or "Commonwealth") filed a motion for court order pursuant to G.L. c. 123, § 16(e) to restrict K.K. to the buildings and grounds of WRCH. On May 3, 2017, the court accepted K.K.'s waiver of the commitment hearing pursuant to § 6(b) and ordered a commitment pursuant to G.L. c. 123, § 16(c) for a period not to exceed one year, expiring on May 2, 2018. The court further ordered, without objection by the respondent, that K.K. be restricted to the buildings and grounds of the facility.

On September 15, 2017, the chief executive officer of WRCH sent notice to the court and the District Attorney, pursuant to G.L. c. 123, § 16(e), of his intent to remove the buildings and grounds restriction. On September 27, 2017, the District Attorney filed an objection to any removal of the restriction. On January 12, 2018, the court held a hearing on the Commonwealth's objection to a removal of the buildings and grounds restriction. The court denied the hospital's motion for a required finding and took the matter under advisement. On March 20, 2018, the court issued a memorandum and order, denying WRCH's request to remove the building and

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grounds restriction and the restriction continued in effect.

On March 22, 2018, K.K. moved the court for a commitment hearing pursuant to G.L. c. 123, § 6(b), and on March 28, 2018, the court heard the arguments on that motion. Citing failure to establish good cause pursuant to G.L. c. 123, § 6(b), the court denied K.K.'s motion for a hearing. A subsequent motion to reconsider was also denied on April 27, 2018. On May 25, 2018, K.K. was adjudicated to be competent to stand trial in the Worcester Superior Court and was released on personal recognizance with conditions to remain at WRCH. K.K. remained at WRCH on conditional voluntary status pursuant to G.L. c. 123, §§ 10 and 11 until December 3, 2018 when he was discharged to a group home in Worcester.

The evidence presented to the trial judge was that K.K. waived his right to a civil commitment hearing not once, but two separate times. [Note 2] In addition, K.K. does not contest the legal validity of the commitment order issued by the trial judge. However, he appeals the restriction that confined him to the grounds of WRCH during his commitment and also the denial of a civil commitment hearing under G.L. c. 123, § 6(b). The circumstances of this appeal are highly unique to K.K., and present no real issue of public importance. "[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134 (1989), quoting Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). Exceptions to this general rule arise "where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). Said another way, courts have considered moot cases only when the matter is "capable of repetition, yet evading review." Kane v. Commissioner of Correction, 395 Mass. 1002 (1985), quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

K.K. was discharged from the hospital and is no longer subject to the orders of the District Court. This is not a controversy where K.K. continues to have a personal stake in the outcome. K.K. does not assert that he was wrongfully committed. The facts of K.K.'s case are unique in that he waived his right to a commitment hearing three separate times, and moved for a commitment hearing pursuant to G.L. c. 123, § 6(b) only after the grounds restrictions upon him were not lifted by the court. The hearing was not requested by K.K. to assess the legal soundness of the commitment order, but to contest the grounds limitation imposed on him by the Commonwealth as the "least restrictive alternative." While on many occasions we have found appeals from mental health commitment orders to be matters of public importance that are capable of repetition and evading review and decided them despite their mootness, that is not the case here.

K.K. has raised no grounds in his appeal that are of public importance. Nor has

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he raised a question that is certain or at least very likely to arise again. The circumstances being particular to him are not capable of repetition in others, and thus there is no occasion to reach whatever merits there may be of the appeal. The moment he was discharged from the hospital, this matter was moot.

The appeal is dismissed.


[Note 1] The Honorable Paul L. McGill participated in the review of this case but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] The respondent waived his right to hearings in April, 2016 and May, 2017. In addition, in 2015 the respondent agreed to a commitment to Worcester Recovery Center and Hospital and only objected to the Superior Court's commitment to Bridgewater. Thereafter, the Superior Court reconsidered and committed the respondent to WRCH.